On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-826-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2007

Before Judges S.L. Reisner and Baxter.

Plaintiffs Carmen Valentin and Jeronimo Reyes appeal from a no-cause verdict at the conclusion of a two-day trial on damages in this automobile accident case, and from the trial judge's subsequent denial of their motion for a new trial. Because defendants Steven Pratz and Jefferson Bank had stipulated to liability, the trial proceeded only on damages. The verbal threshold statute, N.J.S.A. 39:6A-8, was not applicable. We affirm the denial of the motion for a new trial. In light of that determination, we need not address defendants' cross-appeal, in which defendants argue that if plaintiffs prevail on appeal and a new trial is ordered, the judge's decision barring defendants from using photographs of the accident to cross-examine plaintiffs should be reversed.

I.

On June 10, 2003, plaintiffs were on their way to a company picnic in Wildwood when their vehicle was rear-ended by a vehicle driven by defendant Pratz. At trial, plaintiffs produced an estimate of $770 for the cost of repairing the vehicle. Police officer Patrick Greene responded to the scene of the accident and prepared a police report. He listed the accident as "non-reportable," which signified that both vehicles were operational after the crash; no injuries were reported at the scene; and an ambulance was not requested by either driver or any of the passengers. The plaintiffs proceeded to their company picnic and did not seek emergency room care or see a doctor for approximately one week. The doctor who treated plaintiffs commencing one week after the accident, Philip Getson, D.O., was a physician whom their attorney had recommended.

Valentin testified that she did not miss any time from work after the accident and was able to continue in school as well. Reyes, who was out of work on disability at the time of the accident due to a kidney transplant, returned to light-duty work. There was no testimony establishing that any physician ever limited Reyes' work duties, or delayed his return to work, because of this motor vehicle accident.

A nurse practitioner in Dr. Getson's office examined Reyes during his visits to that office. By August 12, 2003, two months after the accident, the nurse practitioner's notes specified that Reyes was no longer experiencing spasms anywhere throughout his spine. Dr. Getson testified that an MRI performed on Reyes showed a "straightening of the lumbar spine and correlated muscle spasm, a mild disc desiccation and a small focal right-sided posterior annular tear at L5-S1." Dr. Getson also described the pain management injections anesthesiologist Alan Carr, D.O., gave to Reyes. Dr. Getson opined that Reyes, as a result of the June 10, 2003 automobile accident, "sustained a traumatic injury to the lumbar spine," which is chronic in nature and which will "predispose[] him to more low back and leg problems with the passage of time." When asked, Getson was unable to explain why Reyes had come to him for treatment rather than conferring with his family doctor, Dr. Merle.

Dr. Getson also testified to his treatment of plaintiff Valentin. He described tenderness of her right jaw. He also described muscle spasm in the neck that extended into her upper back causing limitations in her range of motion. An April 20, 2004 MRI of Valentin's lumbar spine revealed a "straightening of the lumbar spine with correlated muscle spasm" and "hypotrophic facet degenerative changes at L5-S1." Dr. Carr also prescribed the same type of pain management injections for Valentin that he had administered to Reyes. Dr. Getson testified that Valentin had sustained a "myofascial pain syndrome" accompanied by "muscle inflammation and spasticity" to her low back, which Getson opined was permanent.

On cross-examination, when Getson was asked whether his opinion that Valentin's injuries were attributable to the 2003 accident took into account the injuries Valentin had sustained in an automobile accident ten years earlier, Getson acknowledged that Valentin never advised him of her prior injuries. He stated that his opinion as to causation was not changed by the knowledge of that prior accident. On cross-examination, Getson also agreed that his treatment of Valentin ceased on November 4, 2004, and that no spasm to her low back was reported after August 2004. On cross-examination, Dr. Getson also acknowledged that Dr. Carr traveled to Getson's office to administer the pain management injections to plaintiffs. Getson explained that Carr travels to "four or five offices in the general area" for that purpose. Plaintiffs did not object to those questions.

John Cristini, M.D., the defense orthopedic physician, testified that he found no evidence of any orthopedic injury to plaintiff Reyes resulting from the accident. As to plaintiff Valentin, Dr. Cristini opined that the subject accident was not the cause of the injuries reported in Valentin's MRI or in Dr. Carr's report.

During trial, the judge denied defendants' request to cross-examine plaintiff with photographs that showed only minimal damage to plaintiffs' vehicle.

The jury returned a verdict that neither plaintiff had sustained any injuries as a result of this accident. Plaintiffs filed a motion for a new trial and/or additur, which was denied on January 10, 2007. The motion had been filed on December 11, 2006, thirty-three days after the no-cause verdict was rendered on November 8. In a written decision, Judge Kane denied plaintiffs' motion, finding that the motion was procedurally barred because it was filed thirty-three days after the verdict was reached, in violation of the provisions of Rule 4:49-1. That rule requires that such motions be filed no later than twenty days after a verdict. The judge provided a second reason for denying the motion. He reasoned that the jury had heard opposing expert testimony from each side and had had the opportunity to decide which expert was more credible. In light of the evidence presented, Judge Kane held that "it was not unreasonable or shocking to the judicial conscience for the jury to conclude that plaintiffs suffered no permanent injuries from the accident of June 10, 2003. In returning a verdict of 'no-cause,' the jury merely indicated which evidence it found to be more credible; the fact that the verdict was favorable to defendant does not equate to a 'miscarriage of justice.'"

II.

On appeal, plaintiffs argue that the verdict was against the weight of the evidence and that accordingly Judge Kane erred when he denied their motion for a new trial and/or additur. In particular, they argue that the judge erred when he refused to direct the jury that they must find that each plaintiff had sustained an injury as a result of the accident. Plaintiffs point to a portion of the defense attorney's opening in which she stated that "whatever minor injuries [Valentin] sustained were almost completely resolved . . . as of August 12, 2003, about two months after the accident. She had a little bit of decreased range of motion, but that was gone, according to the notes, by October 2, 2003." As to Reyes, defense counsel explained in her opening that he "has shown nothing objectively as of that [same] date in terms of continuing objective signs that he was injured any longer from the motor vehicle accident."

Plaintiffs characterize the attorney's opening, and her repetition of those same themes during her closing, as "stipulated facts" entitling them to a jury charge that would have directed the jury to award damages. We disagree. A comment in an attorney's opening or closing is not evidence, and the jury was properly directed not to regard such comment as evidence. Moreover, a comment in an opening is not the same as a stipulated fact. Assuming, for the purposes of argument, that the comments of defense counsel in her opening are the equivalent of a stipulated fact, we discern no "manifest injustice that shocks the judicial conscience," Mahoney v. Pedolnick, 168 N.J. 202, 230 (2001)(quoting Carey v. Lovett, 132 N.J. 44, 66 (1993)), in the jury's failure to award damages. Nor do we find error in the trial court's denial of plaintiffs' post-trial motions.

When we review the denial of a plaintiff's motion for a new trial, we are obliged to consider the evidence in a light most favorable to the prevailing party. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). Applying that standard of review, we are satisfied that the jury had a rational basis in the evidence to conclude that the injuries each plaintiff sustained in the accident were very minor, and only temporary, and did not justify an award of damages. We note, among other things, that Valentin never lost any time from work, and did not seek medical treatment until a week after the accident. Moreover, the jury had the opportunity to hear and consider the testimony of Valentin's treating physician and the defense expert, and to evaluate which opinion it considered more reliable. The jury also heard testimony that Valentin had injured her low back in a prior accident. As to Reyes, the jury heard testimony that: Reyes chose to be treated by a doctor his attorney recommended, rather than consult his family doctor; Dr. Cristini found no evidence of any orthopedic injury to Reyes resulting from the accident; the damage to the vehicle was $770; Reyes did not see a doctor for treatment until a week after the accident; and that, according to the nurse practitioner's notes, all spasms had ceased by August 2003.

Plaintiffs cite three cases in support of their contention that as a matter of law, they were entitled to an award of damages: Fertile v. St. Michael's Med. Ctr., 169 N.J. 481 (2001), Caldwell v. Haynes, 136 N.J. 422 (1994) and Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227 (1971). None of those three cases supports such a claim. They simply stand for the proposition that remittitur should be employed only in cases where a damage award is so grossly excessive as to demonstrate that it was the result of prejudice, partiality or passion. None of those cases holds that a plaintiff is entitled to damages as a matter of law merely because a defense attorney makes mention of temporary injuries in an opening or closing, nor do those cases hold that comments by counsel constitute "stipulated facts" that mandate a judgment in a plaintiff's favor.

III.

In Point II, plaintiffs argue that the trial court erred when it declined to give the jury an instruction to disregard defense counsel's comment in her closing that Dr. Carr traveled to Dr. Getson's office to provide pain management injections and billed for his travel time. Plaintiffs argue that because that comment during the summation was highly prejudicial, the court should have barred it from the jury's consideration.

Even though Dr. Carr himself was not a witness, plaintiffs' case placed Dr. Carr's opinions and conclusions before the jury through Dr. Getson's testimony. Evidence that Dr. Carr traveled to the offices of four or five other physicians to inject patients with pain medication was a factor that the jury had a right to evaluate in determining the credibility of Dr. Carr's opinions. There was nothing false in the remark made by defense counsel and the remark did not mislead the jury in any fashion. Attorneys are afforded broad latitude in summation. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999). "Counsel may argue from the evidence any conclusion which a jury is free to reach." Ibid. Under the circumstances, the judge did not err when he declined to instruct the jury to disregard defense counsel's comment about Dr. Carr.

IV.

In Point III, plaintiffs argue that the trial judge committed reversible error of law when he failed to bar defendant from reading into the record portions of plaintiffs' deposition testimony and portions of their testimony from the first trial.*fn1 Specifically, plaintiffs argue that defendant was required by Rule 4:25-7(b) and Appendix XXIII to have specified the portions of any deposition testimony that he proposed to read to the jury no later than seven days prior to the initial trial date.

Plaintiffs are correct that Rule 4:25-7(b) and Appendix XXIII do require such pretrial exchange of information. Defendants argue, however, that "plaintiffs received the same trial submission from defense counsel at each trial appearance. Plaintiff[s] never moved to compel a more specific statement regarding the specific portions of depositions [that] would be read. In particular, plaintiff[s] [were] advised instead [sic] and defense counsel reserved the right to read any and all [sic] into the record depending on what the trial testimony was in the case." We are hampered by the failure of either party to provide us with a copy of the document defendants served on plaintiffs prior to trial. We gather, however, that defendants broadly reserved, without specifying particular page and line numbers, the right to read deposition testimony or testimony from the prior trial to the jury as part of the defense case.

While we might have preferred defendants to have furnished a more specific statement, we also recognize that plaintiffs failed to seek one. Under those circumstances, we are not prepared to say that the judge erred when he refused to bar defendants from reading portions of plaintiffs' depositions and prior trial testimony to the jury during the defense case. This is especially so where, as here, a substantial portion of the testimony defendants read to the jury had already been the subject of cross-examination of plaintiffs during the trial.

V.

In light of our determination that the denial of plaintiffs' motion for a new trial was not error, we need not address defendants' cross-appeal, in which defendants argue that the trial court improperly granted plaintiffs' motion for a new trial on October 27, 2005, and improperly barred the use of the property damage photographs during the second trial.

Affirmed.

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